P L D 1961 Supreme Court 119 (PLP)

KAIKAUS, J.‑This judgment will dispose of Civil Appeals Nos. 8 to 12 of 1959, the first being appeal by special leave and the other four certificated appeals all of which are directed against a judgment of the High Court of West Pakistan, dated the 21st May 1957, in two connected Writ Petitions filed by the heirs of Sir Muhammad Akbar Khan, Nawab of Hoti, challenging the juris diction of the Controller of Estate Duty to realise from them any duty other than that which was due on the account filed by them. It is necessary for the purpose of understanding the subject -matter of the two writ petitions, out of which these appeals arise, to state briefly the facts that led to the filing of those petitions though the same facts will have to be reverted to in more detail later. Sir Muhammad Akbar Khan, the Nawab of Hoti, died on the 6th of October 1952. The Estate Duty Act of 1950, which made all property passing on the death of a person, if it exceeded the prescribed minimum, subject to an estate duty at graduated rates, had come into force by that time. According to the scheme of the Act as it stool then, the persons accountable for estate duty were bound to submit an account of the estate of the deceased to the Central Board of Revenue within 6 months of the death. On the account, as filed, the duty was to be paid at once, unless the Board allowed either security or instalments. If the Board was of the opinion that the account filed did not correctly repre sent the value of the property of the deceased the Board could call upon the person filing the account to amend the valuation, and if the valuation was not amended the Board could within one year of the filing of the account make a reference to the High Court whose decision on the points of dispute would be final subject to an appeal to the Federal Court. An account of the property of Sir Muhammad Akbar Khan was filed by his heirs on the 18th of March 1953, showing property of the value of Rs. 30,57,

651. On the 21st of March 1953 the Board informed the heirs that the total duty payable on the account was Rs. 10,84,546 out of which the heirs were required to pay 4 lacs at once and to pay the balance in instalments which would be fixed later. Before the expiry of the time limit of one year during which the Board was entitled to make a reference to the High Court the Estate Duty Act was amended and a new scheme was introduced. It may be mentioned here that the Act bad once been amended even in 1951 by a very unusual Act called the Central Statutes (Revision and Amendments) Act, 1951, the effect of which as regards the Estate Duty Act was only to re‑number some of its sections. The amendment which changed the scheme of the Act was introduced by the Estate Duty (Amendment) Act, 1953, which came into force on the 3rd of July 1953. By this Act the Board was replaced by an authority called the Controller of Estate Duty, but whereas the Board was only a party to the proceeding the Controller was empowered to determine the value of the property himself if the person accountable did not amend the valuation when required to do so. Against the decision of the Controller an appeal was provided to a Tribunal called the Appellate Tribunal, and to the High Court henceforth there could only be a reference on questions of law by the Tribunal on the application of the Controller or the accountable party. The decision of the High Court, subject of course to an appeal to the Federal Court, was to be binding. The Controller was not satisfied with the valuation of the account filed by the heirs of Sir Muhammad Akbar Khan (hereinafter called the appellants) and on the 19th of September 1955, he called upon them to produce evidence for the purpose of determining the true value of the property. In response to this notice the appellants appeared before the Controller and some proceedings were taken, but before the Controller could give any decisions the appellants filed in the Chief Court of Sind at Karachi a writ petition under section 223‑A of the Government of India Act, 1935, on the 1st of December 1954, contesting the jurisdiction of the Controller to determine the value on the ground that the Board not having taken any steps against the accounts submitted by them, the matter was regarded as having been finally disposed of and could not be re‑opened. This writ petition was dismissed on the ground that section 223‑A had not received the assent of the Governor‑General. The appellants then gave notice of a suit under section 80 of the Civil Procedure Code. On the 28th of November 1955, the Controller exercising his powers under section 58‑A of the amended Act called upon the appellants to amend their valuation. Section 223‑A had in the meantime been validated by the Validation of Laws Act, 1955 and on the 14th of December 1955 the appellants filed in the High Court of West Pakistan at Lahore Writ Petition No. 39 of 1955 contesting the jurisdiction of the Controller to proceed with the determination of duty on three grounds :‑ (1) the Board not having objected at any time to the account filed, nor for having taken any action in respect of it, the Con troller could not re‑open the matter ; (2) the scheme provided in the amending Act of 1953 could be applicable only to a case where the account had been filed before that Act came into force ; (3) that section 57 in accordance with which estate duty was to be realised was so worded that it did not permit realisation of any duty except that which was due on the account filed by the accounting party itself. In explanation of the third ground it may be stated here that a mistake had apparently crept into the Act as amended. Although the controller had replaced the Board, the reference in section 57 according to which duty was to be realised was still to the Board and to the contingencies which arose in the original scheme so that it did not refer to realization of duty on the basis of the determi nation by the Controller or the Appellate Authority, and on its wording the section could apply only to the account filed by the accounting party itself. In this writ petition a notice was issued to the Controller as well as the Central Government. On the day when the case was argued the Advocate‑General of Pakistan having regard to the defective wording of section 57 made a statement on behalf of the Controller that the Controller did not intend to realize any duty other than that which was payable on the account filed by the appellants until section 57 was amended. He stated further that en payment of the sum of Rs. 79.000 which alone remained unpaid if duty was calculated on the basis of the account submitted a certificate under section 58 of the Estate Duty Act would be issued to the appellants. It may be stated here that section 58 relates not to a certificate of final discharge, but to the certificate which is to be issued on payment of the estate duty payable on the account as filed. On account of the statement of the Advocate‑General the writ petition was dismissed on the 23rd January 1956, having become infructuous. The counsel for the appellants wrote to the Controller for clear certificate of discharge claiming that they were entitled to it in accordance with the state ment made by the Advocate‑General. Such a clear certificate was refused, the position of the Controller being that this was not the intention of the statement. The appellants then filed another Writ Petition No. 96 of 1956 contending that they were entitled under the circumstances to a clear certificate of discharge and that the reference in the statement of the Advocate‑General to section 58 was based on the assumption that section 58 related to a final discharge certificate. This writ petition came up before S. A. Rahman, C. J. (as he then was) and Shabir Ahmad, J. S. A. Rahman, C. J. had been a party to the order in Writ Petition No. 39 of 1955. This second writ petition was dismissed in limine on the 8th March 1956, but observations were made in the order to the effect that at the time the first writ petition was decided a complete discharge on payment of Rs. 79,589 was intended. The appellants sent copies of this order to the Controller and the Government of Pakistan, but the Controller continued his demand for an amendment of the account. In the meantime, the Estate Duty Act was amended by the Finance Act of 1956 and section 57 was modified so as to bring it in accord with the rest of the Act. The Controller was also granted power to re‑open cases where the valuation in the account filed was discovered to be too low, but by section 74‑A he was debarred from re‑opening and re‑determining any cases where the rights of the parties had been finally determined by the High Court. The Controller in pursuance of the notice which he had issued on the 28th of November 1955 under the 1953 Act (without the 1956 amendment) proceeded to determine the matter himself and on the 2nd of October 1956 called upon the heirs to pay an additional sum of Rs. 72,61,

584. This notice was received by the appellants on the 6th November 1956. The appellants then filed the two writ petitions out of which the present appeals arise, that is, Writ Petitions Nos. 662 and 663 of 1956, on the 29th of November 1956. The first of these writ petitions was by Nawabzada Lt. Col. Muhammad Amir Khan, son of Sir Muhammad Akbar Khan, excepting Nawabzada Muhammad Umar Khan, son of Sir Muhammad Akbar Khan, and the second by the first of the heirs of Sir Muhammad Akbar Khan, who was shown as proforma respondent in both these petitions. The subject‑matter of both the petitions was the same and two petitions were filed, only to enable two counsel to argue. The main ground of attack on the order of the Controller eras that section 74‑A introduced by the Finance Act of 1956 debarred the Controller from re‑opening a matter which had been decided by the two orders of the High Court in Writ Petition No. 39 of the 1955 and Writ Petition No. 96 of 1956. The prayer was for a writ of certiorari for removing to the High Court, for being quashed, orders passed by the Controller, a writ of prohibition prohibiting the Controller from taking further action, and a mandamus directing the Con troller to comply with his statutory duty and not to demand any amount which is not calculated on the value of the estate as given in the account filed by the appellants themselves. At the time of final arguments a plea was also taken on behalf of the appellants that the Finance Act, 1956, which was a Central Act was ultra vires in so far as it related to agricultural land because estate duty on agricultural land was within the exclusive jurisdiction of the pro vincial Legislature. On behalf of the Controller and the Govern ment of Pakistan it was contended that the Controller had jurisdiction to proceed as he did. A preliminary objection was also raised that an appeal lay against the order of the Controller to the Appellate Tribunal, and therefore the writ petition was not competent. During the pendency of the proceedings an appeal objecting to the valuation of the Controller was in fact filed by the appellants before the Appellate Tribunal. This preliminary objection does not appear to have been taken at the time of the final arguments before the High Court though it has been repeated before us. The petitioners were heard by a Full Bench consisting of S. A. Rahman, C. J. (as he then was), Kayani, J. (as he then was and Muhammad Shafi. J. S. A. Rahman, C. J. and Muhammad Shall, J. were of opinion that the order passed by the High Court in Writ Petition No. 39 of 1955 was not a decision within the meaning of section 74‑A, and that by the order in Writ Petition No. 96 of 1956 the Controller and the Central Government were not bound because no notice had been issued to them. Kayani, J. was of opinion that the order of the High Court in Writ Petition No. 39 of 1955 did amount to a decision within the meaning of section 74‑A. By a majority, therefore, the plea of the appellants that section 74‑A was a bar to the Controller proceeding with the determination was repelled. All the learned Judges were, however, agreed that the Central Finance Act of 1956 was ultra vires in so far as it applied to agricultural land. As a result, a direction was issued to the Controller and the Central Government forbidding them to re‑open the valuation in so far as it related to agricultural land. Appeals Nos. 9 and 10 have been filed by the heirs of Nawab Sir Muhammad Akbar Khan, while Appeals Nos. 11 and 12 have been filed by the Controller and the Central Government of Pakis tan. Civil Appeal No. 8 of 1959 is identical with Civil Appeal No. 9 of 1959. As the Appellant when they applied for a certificate to the High Court had been refused a stay order, they filed a petition for special leave and secured special leave resulting in Civil Appeal No. 8 of 1959. Subsequently, they were granted a certificate too for the same appeal by the High Court. Before us the only contention on behalf of the appellants in their own appeals is that section 74‑A is a complete bar under the circumstances to the Controller taking any further action. The Attorney‑General has, while appearing on behalf of the Central Government, raised two preliminary objections, the first being that a writ could not be granted till the appeal of the appellants had been decided, and the second that the writ is in the form of a direction and not mandamus, and therefore it abates on account of the provisions of the Laws (Continuance in Force) Order, 1953. In their own appeals the Central Government and the Controller contend that the Finance Act of 1956 was not ultra vires of the Central Legislature and in any case, even if the Finance Act of 1956 be ignored the proper duty calculated on the basis of determi nation by the Controller can be realised in spite of the defective wording of section 57 as it stood before its amendment by the Finance Act of 1956. Before proceeding to discuss the points raised in the two appeals the first preliminary objection raised by the Attorney- General has to be disposed of. The objection is that before the appellants could be entitled to invoke the writ jurisdiction of the High Court they ought to have exhausted the remedy by way of appeal against the order of the Controller to the Appellate Tribunal. The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at page 107, 3rd Ed., Vol. 11 : "The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective." One of the well‑recognized exceptions to this general rule is a case where an order is attached on the ground that it was wholly without authority. This exception was referred to in the very case on which reliance is placed by the learned Attorney‑General, i.e., Tariq Transport Co. v. Sargodha‑Bhera Bus Service (P L D 1953 S C (Pak.) ‑437), and also in the later case of this Court S. A. Haroon v. Collector of Customs (P L D 1959 S C (Pak.) 177). In the last mentioned case an appeal against the order of Collector of Customs was actually pending when the writ petition was decided by the High Court, yet this Court refused to give effect to this preliminary objection on the ground that the order of the Collector was attacked as in excess of authority and a question of interpretation of law which was of general importance was involved. It may be pointed out here that in accordance with a passage in Halsbury (p. 130, 3rd Edn., Vol. 11), which is reproduced in S. A. Haroon v. Collector of Customs, the objec tion as to existence of the right of appeal which is available in a petition for mandamus is not available in a petition for certiorari at all. The passage runs: "There is no rule in regard to certiorari, as there is with Fs mandamus, that it will lie only where there is no other equally effective remedy ; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute." This is not in accord with what is stated in Ferris on Extra ordinary Legal Remedies, but it may be pointed out in support of the statement in Halsbury that if the existence of a right of appeal be an obstacle to petition for certiorari, then petitions for certiorari against the orders of rife Custodian, tae various Election Tribunals and industrial Tribunals, will have as a general rule to be dismissed and Industrial because an appal by special leave does lie in all such cases to this Court and the grounds of such appeal are surely not narrower than the grounds for certiorari. The existence of the right of appeal to this Court has however never been regarded as a bar to the enter tainment of petitions fir certiorari by the High Court. So far as proceedings in excess of jurisdiction are concerned it is accepted even in Ferris on Extraordinary Legal Remedies that certiorari will lie even though a right of appeal exists. In the present case, the attack was on tine very jurisdiction of the Controller to proceed with the assessment of estate duty on account of the section 74‑A of the Estate Duty Act. An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of writ jurisdiction by the High Court. In fact, in cases where an order is challenged as wholly without jurisdiction a petition for a writ appears to be a more appropriate remedy. At the same time, though this preliminary objection had been taken in the written statement it was presumably not pressed during the final arguments before the Full Bench as it does not find any place in the judgment. We are not bound to entertain this objection which is deemed to have been waived and which is based only on a rule by which the Court regulates the exercise of its own jurisdiction. We proceed now to consider the point involved in the appeals filed by the heirs of Sir Muhammad Akbar Khan i.e. whether section 74‑A debarred the Controller from proceeding with the determination of estate duty. It will be convenient to reproduce here the relevant sections of the Estate Duty Act as they stood in the original Act and as they stood after the amendment. This will help not only in determining the matter in issue in appeals Nos. A to 10, but is also necessary for a decision of the main point argued in this Court on behalf of the Central Government and the Controller in their own appeals, namely, that we can ourselves modify section 57 so as to bring it in accord with the rest of the Act and the intention of the Legislature. We reproduce in the first place the relevant sections of the original Act (as they were re‑numbered by the Act of 1951): "

4. Levy of estate duty.‑In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and upon the principle value ascertained as hereinafter provided, of all property, settled or not settled, which passes on the death of such a person, a duty called "estate duty" at the graduated rates hereinafter mentioned.

53. Persons accountable, and their duties and liabilities. (1) Where any property passes on the death of the deceased, every person to whom such property so passes for any beneficial interest in possession, and also, to the extent of the property actually received or disposed of by him, every executor, trustee, guardian, committee or other person in whom any interest in the property so passing or the management thereof is at anytime vested, and every person in whom the same is vested in posses sion by alienation or other derivative title, shall be accountable for the whole of the estate duty on the property passing on the death: Provided that nothing in this section shall render a person accountable for duty who acts merely as agent or bailiff for another person in the management of property. (2) Nothing in this section shall render liable to or account able for duty a bona fide purchaser for valuable consideration without notice. (3) Every person accountable for estate duty under the pro visions of this section shall, within six months of the death of the deceased or such later time as the Board may allow, deliver to the Board and verify to the best of his knowledge and belief, an account of all the property in respect of which estate duty is payable. (4) Where the person accountable knows of any property which he has not included in his account because he does not know its amount or value, he may state that such property exists, but he does not know the amount or value thereof and that he undertakes, as soon as the amount and value are ascertained, to bring a supplementary account thereof and to pay both the duty for which he may be liable in respect of such property and any further duty payable by reason thereof for which he may be liable in respect of the property mentioned in the original account. (5) Where two or more persons are accountable, either in the same capacity or in different capacities for estate duty in respect of the same property, their liability is concurrent.

57. Estate duty when due and how and when to be collected Estate duty shall be due from the date of death of the deceased and shall be collected upon the account delivered under section 49 or section 52 or prepared under subsection (3) of section 55, and amended or modified where necessary as provided in subsection (1) or subsection (5) of section 55; and interest at the rate of 3 percent. per annum shall be paid on the duty from the date of the death up to the date of delivery of the account or the expiration of twelve months after the death whichever happens first.

58. Duty to be paid or security for payment furnished for delivery of account and certificate to be granted thereupon‑Upon delivery of the account under section 49 or section 52, the person delivering it shall pay to the Board, or furnish security to the satisfaction of the Board for the payment of the estate duty, if any, payable in respect of the property included in the account, and the Board shall thereupon grant him a certificate that such duty has been or will be paid, or that none is due as the case may be.

59. Board's powers in respect of valuations.‑(1) If the Board is of opinion that the person delivering the account has underestimated the value of the property in respect of which estate duty is payable (whether by placing too low o value on the property included in the account or by omitting to include there in property that ought to have been included), the Board may inquire into the matter in such manner and by such means as it thinks fit and, if still of opinion that the value of the property has been under‑estimated, may require him to amend the valuation. (2) If such person does not amend the valuation to the satis faction of the Board, the Board may move the High Court to hold an inquiry into the true value of the property: Provided that no such motion shall be made after the expiration of one year from the date of delivery of the account under section 49 or section 52. (3) In any case where no account has been delivered as required by section 49 or section 52, the Board may cause an account of the property passing upon the death of the deceased to be prepared in such manner and by such means as it thinks fit and may call upon any person who in its opinion is account able for the payment of the estate duty in respect of the property to accept such account. (4) if such person disputes his accountability or the correctness of the account, the Board may move the High Court to hold an inquiry into the matter. (5) The High Court when moved under subsection (2) or sub section (4) shall hold or cause to be held an inquiry accordingly and shall record a finding on the matters in issue. The Board shall be deemed to be a party to the inquiry. (6) Any person authorized by the High Court to hold the inquiry may take such evidence on oath as he considers necessary and shall submit to the Court a report of the result of the inquiry together with the evidence taken by him and such report and the evidence so taken shall be evidence in the proceeding. (7) The Central Government shall, within twelvemonths after the commencement of this Act, and may thereafter from time to time, appoint a sufficient number of qualified persons to act as valuers for the purposes of this Act and shall fix a scale of charges for the remuneration of such persons and the High Court may refer any question of disputed value under this section to the arbitration of any person so appointed ; and the costs of any such arbitration shall be part of the costs in the case. (8) An appeal shall lie to the Federal Court from any judg ment of the High Court delivered on a notion made under this section in any case which the High Court certifies to be a fit case for appeal to the Federal Court. Explanation‑"High Court" in this section means the High Court to which, or to a Court subordinate to which, an applica tion for a grant of representation has been made, or where no such application has been made, the High Court which would have jurisdiction to entertain such an application.

61. Certificate of payment of duty, and penalty for non -payment.‑(1) Where the valuation is amended by the person accountable upon the Board's requisition under subsection (1) of the section 55, or is enhanced by the High Court upon the Board's motion under subsection (2) of section 55, and in any case where the original valuation has been discovered to be too low, such person shall within three months of the amendment or enhancement or discovery pay the deficit duty which is payable in respect of the property upon the amended or enhanced or full valuation and the Board shall thereupon grant him a certificate accordingly. 70/66. Discharge from estate duty in certain cases.‑A certificate granted by the Board under section 57 or section 59 shall discharge the property included therein and the grantee so far as regards that property from any further claim for estate duty, but shall not discharge any person or property from estate duty in case of fraud or failure to disclose material facts, and shall not affect the duty payable in respect of any property afterwards shown to have passed on the death, nor any further duty payable by reason thereof in respect of the property in. eluded in the certificate." According to the scheme of the Act duty was payable on the account filed by the accounting party. On the filing of the account, duty was to be paid at once unless security was taken or instal ments allowed as provided by section 58 and the Board, if it was not satisfied with the valuation, could proceed in accordance with section

55. The position of the Board was only that of a party who could make a reference to the High Court in case of a dispute as to valuation. Section 4 is the charging section which created the liability and section 57 provided for the collection of duty which was found to be due in accordance with the provision of the Act relating to determination of value of the property. Section 58 provided for grant of a certificate of payment of duty on the basis of the account filed, while section 61, provided for the grant of certificate when the valuation was amended. Section 70 provided for discharge from liability in a limited form. In the Act, as amended by the Amending Act of 1953, section 4, the charging section, and section 53 which provided for the filing of an account remained as they were in the original Act and therefore they are not being reproduced. The other relevant sections of the Act as amended are the following: "

57. Estate duty shall be due from the date of the death of the deceased and shall be collected upon the account delivered under section 53 or section 56 or prepared under subsection (3) of section 59, and amended or modified where necessary as provided in subsection (1) or subsection (5) of section 59, and interest at the rate of 3 percent. per annum shall be paid on the duty from the date of the death up to the date of the delivery of the account or the expiration of twelve months after the death, whichever happens first.

58. Upon delivery of the account under section 53 or section 56, the person delivering it shall pay to the Board, or furnish security to the satisfaction of the Board for payment of the estate duty, if any, payable in respect of the property included in the account, and the Board shall thereupon grant him a certificate that such duty has been or will be paid, or that none is due, as the case may be. 58‑A. If the Controller is of opinion that the person deliver ing the account has under‑estimated the value of the property in respect of which estate duty is payable (whether by placing too low a value on the property included in the account or by omitting to include therein property that ought to have been included), the Controller may inquire into the matter in such manner and by such means as he thinks fit and, if still of opinion that value off' the property has been under‑estimated may require such person to amend the valuation, and if the valuation is not thereupon amended to the satisfaction of the Controller, the Controller may determine the valuation on the basis of which estate duty is payable. 58‑B. In any case where no account has been delivered as required by section 53 or clause (a) of section 56 the Controller may cause an account of the property passing on the death of the deceased to be prepared in such manner and by such moans as he thinks fit and may call upon any person wino in his opinion is accountable for the payment of estate duty in respect of the property to accept such account, and if that person does not accept the account or his liability, the Controller may determine the estate duty payable by that person. 58‑D. When any estate duty, penalty, interest or any other sum chargeable has been determined in consequence of any order passed under or in pursuance of this Act, the Controller shall serve on the person accountable a notice of demand in the prescribed form specifying the sum so payable and the time within which and the place at which it is payable Provided that where an appeal has been filed before the Appellate Tribunal, the Controller may in his discretion postpone collection of so much of the estate duty as in dispute. 59. (I) Any person objecting to the valuation made or the estate duty determined by the Controller or denying his liability to account for the duty payable in respect of any property may, within ninety days of the receipt of the notice of demand under, section 58‑D, appeal to the Appellate Tribunal in the prescribed form and verified in the prescribed manner. (2) The Appellate Tribunal may admit an appeal after the expiry of the period referred to in subsection (1) if it is satisfied that there was sufficient cause for not presenting it within the period. (3) The Appellate Tribunal may, in disposing of any appeal hold or cause to be held such further inquiry as it thinks fit, and after giving the appellant an opportunity of being heard may pass, subject to the provisions of subsection (4), such orders thereon as it thinks fit and shall send a copy of such orders to the appellant and the Controller. (4) Where the dispute pertains to the valuation of any pro perty, the appellant may require the Appellate Tribunal to refer the question of disputed value to the arbitration of the valuers, and the cost of such arbitration be paid by the appellant. 59‑A. (1) Within ninety days of the date upon which he is served with an order under subsection (3) of section 59 the person accountable or the Controller may present an application to the Appellate Tribunal in the prescribed form, accompanied where the application is made by the accountable person by a fee of one hundred rupees, requiring the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall, if in its opinion a question of law arises out of such order, state the case for the opinion of the High Court. Provided that the Appellate Tribunal may admit such an application after the expiry of ninety days if it is satisfied that there was sufficient cause for not presenting it within ninety days. 61. (1) Where the valuation is amended by the person accountable upon the Collector's requisition under subsection (1) of section 59, or is enhanced by the High Court upon the Controller's motion under subsection (2) of section 59, and in any case where the original valuation has been discovered to be too low, such person shall within three months of the amend ment or enhancement or discovery pay the deficit duty which is payable in respect of the property upon the amended or enhanced or full valuation and the Controller shall thereupon grant him a certificate accordingly.

70. A certificate granted by the Controller under section 61 or section 63 shall discharge the property included therein and the grantee so far as regards that property from any further claim for estate duty, but shall not discharge any person or property from estate duty in case of fraud or failure to disclose material facts, and shall not affect the duty payable in respect of any property afterwards shown to have passed on the death, nor any further duty payable by reason thereof in respect of the property included in the certificate." It will be seen that the Board was replaced by the Controller of estate duty, but whereas the Board was only a, party to the proceedings, the Controller if he was not satisfied with the valua tion in the return filed by the accountable party, could determine the matter himself, subject to an appeal to the Appellate Tribunal and subject also to the decision of any questions of law which may be referred to by the Tribunal to the High Court. In view of the substitution of the Board by the Controller it was necessary that section 57 which provided for the collection of estate duty on the basis of the account filed by the accountable party or amended in accordance with the procedure as provided in the original Act should have been suitably amended so as to include a reference to collection of duty on the basis of a determination by the Controller or the Appellate Tribunal. This, however, admittedly on account of a slip by the draftsman, was omitted and section 57 remained in its original form. It became partly in appropriate and partly meaningless. It continued to refer to subsection (5) of section 59 whereas that had ceased to exist and it made no reference to the Controller at all. However, although section 57 was not amended, a new provision authorising a notice of demand was introduced by section 58‑D. This provided for a notice of demand by the Controller when duty had been determined in. accordance with the Act. By the Finance Act of 1956, section 57 was amended so as to correct the mistake that had crept into it. At the same time, the Controller was given power to reopen cases which had previously been closed if the original valuation was discovered to be too low. Section 58‑D, section 59‑A and section 70 remained as they were. Following are the other relevant sections as they stood after the amendment of 1956 :‑ "

57. Estate duty shall be due from the date of the death of the deceased and shall be collected upon the account delivered under section 53 or section 56 or prepared under section 58‑D, or on the valuation amended or determined, as the case may be, under section 58‑A, or section 58‑BB, or on the application, if any, made under section 62 or section 63, subject to the pro visions of sections 59, 59‑A and 59‑B, and interest at the rate of 3 percent. per annum shall be paid on the duty from the date of the death up to the date of the delivery of the account or the expiration of twelve months after the death, whichever happens first.

58. Upon delivery of the account under section 53 or section 56, the person delivering it shall pay to the Controller or furnish security to the satisfaction of the Controller for the payment of the estate duty, if any, payable in respect of the property included in the account, and the Controller shall there upon grant him a certificate that such duty has been or will be paid, or that none is due, as the case may be. 58‑A. If the Controller is of opinion that the person deliver ing the account, whether before or after the commencement of the Estate Duty (Amendment) Act, 1953, has under estimated the value of the property in respect of which estate duty is payable (whether by placing too low a value on the property included in the account or by omitting to include therein property that ought to have been included), the Con troller may inquire into the matter in such manner and by such means as he thinks fit and, if still of opinion that the value of the property has been under‑estimated, may require such person to amend the valuation, and if the valuation is not thereupon amended to the satisfaction of the Controller, the Controller may determine the valuation on the basis of which estate duty is payable. 58‑B. In any case where no account has been delivered as required by section 53 or clause (a) of section 56, whether before or after the commencement of the Estate Duty (Amendment) Act, 1953, the Controller may cause an account of the property passing on the death of the deceased to be prepared in such manner and by such means as he thinks fit and may call upon any person who in his opinion is accountable for the payment of estate duty in respect of the property to accept such account, and if that person does not accept the account or his liability, the Controller may determine the estate duty payable by that person. 58‑BB. Determination of duty where motion has been made by the Board to the Nigh Court.‑(1) Notwithstanding anything contained in sections 58‑A and 58‑B, where any valuation is determined by the High Court or the Federal Court in con sequence of a motion made to it by the Board before the commencement of the Estate Duty (Amendment) Act, 1953, the Controller shall adopt that valuation and determine the duty payable thereon accordingly. 59 (1) . . . . . . . 59 (2) . . . . . . . 59 (3) The Appellate Tribunal may, before disposing of an appeal, call for such particulars as it may require respecting the matters arising in the appeal or, where a reference has been made under subsection (4), cause further enquiry to be made by the valuer or valuers, as the case may be, and after giving the appellant, the Controller, and where necessary, the valuer or valuers, as the case may be, an opportunity of being heard may pass; subject to the provisions of subsections (4), (5), (6) and (7), such orders as it thinks fit and shall send a copy of such orders to the appellant and the Controller. (4) Where the dispute pertains to the valuation of any property, the appellant may require the Appellate Tribunal to refer the question of disputed value to the valuers and the Tribunal shall thereupon refer the question to any one valuer or more valuers than one as it thinks fit. . . . . . . . . . . . 61 (1) Where the original valuation (including a subsequent valuation, if any) is discovered to be too low (either because too low a value was placed on the property in respect of which estate duty is payable, or any such property was omitted), the Controller may require an accountable person to submit an account of all property (including property, if any, which was omitted) in respect of which estate duty is payable, within such time as may be specified by him in this behalf and the provisions of sections 58‑A, 58‑B, 62 and 63 shall thereupon apply as if the said account were the account which an accountable person is required to submit under sections 53 and 56." It may be at the same time stated that in section 74‑A as it originally stood there was an explanation which ran: "Explanation‑Any payment or realization of estate duty by or from any accountable person or persons under the law as it existed before the first day of April, 1956, or any certificate of discharge granted under such law shall not, in any way, affect the right or authority of the Controller to determine and realize under the law in force after the said first day of April, 1956, the estate duty payable in respect of such property, but in all such cases the Controller shall deduct from the amount so determined the sum or sums paid by, or realized from, the accountable person or persons." This was delected by the Estate Duty (Amendment) Ordinance XII of 1956, dated the 12th/13th September 1956, and is deemed never to have existed. Writ Petition No. 39 of 1955, the order passed in which is the subject‑matter of the present discussion was filed as already petition was based mainly on the ground that on account of the defective wording of section 57 duty was not realizable except on the account filed by the accounting party itself. During the course of argument the Advocate‑General of Pakistan who appeared for the Central Pakistan Government conceded that unless section 57 was amended duty in excess of that payable on the account filed by the appellants could not be realized. He stated also that till amendment the Controller did not intend to realize estate duty in excess of that payable on the account filed. At this his statement was recorded which is in the following words :‑ "The Controller of Estate Duty does not intend to make any collections from the petitioners in excess of the estate duty payable on the accounts declared by them to the Central Board of Revenue until the clerical mistake that has crept into section of 57 (amended) is suitably rectified. On the present wording of section 57 (amended), I concede that no claim can be made in excess of the amount payable on the account declared. The balance of the estate duty due on the accounts declared is Rs. 79,

589. This may be deposited in the State Bank and a draft be given in the name of the Controller of Estate Duty, who will issue a discharge certificate under section 58 of the Estate Duty Act. Mr. Manzur Qadir, who appeared for the appellants, then made the following statement :‑ "My clients have brought the money in Court and have sent it for deposit to the State Bank. I will hand over a draft as suggested, to the Advocate‑General today. I may, however, submit that the error in section 57 is not really a clerical error." On the basis of these statements the Court passed the follow ing order :‑ "In view of the statements of counsel made above the petition has become infructuous and is dismissed as such. There will be no order as to costs." After some time counsel for the appellants wrote to the Con troller for a discharge certificate claiming that the appellants were entitled to such certificate in view of the statement of the Advocate‑General. This certificate was refused. Another writ petition was then filed i.e. Writ Petition No. 96 of 1956, the object of which was to compel the Controller to grant a discharge certificate. This petition was heard by S. A. Rahman, C. J. and Shabir Ahmad, J., and was dismissed in limine. Following is the order which was passed :‑ "We have seen the record of proceedings in W. P. No. 39 of 1955. The intention clearly was that with the deposit of Rs. 79,589 by the petitioners, the liability under the Estate Duty Act as it stands at present, would be fully and finally discharged. Even if, therefore, the Controller has chosen other words importing an ambiguity, it does not alter the legal position, viz., that with the above‑mentioned payment, the duty leviable under the Act was fully paid up and this was conceded by the learned Advocate‑General of Pakistan. With this clarification we dismiss the petition as it requires no further orders. The appellants contend that by the order in Writ Petition No. 39 of 1955 as well as by the order in Writ Petition No. 96 of 1956, which may be regarded either as a clarification or as a separate order, the rights of the parties under the Estate Duty Act were finally determined and therefore the Controller had no jurisdiction in view of section 74‑A to proceed with the assessment. On behalf of the Pakistan Government and the Controller there are 3 contentions: (1) Section 74‑A was not intended to cover decisions by the High Court in Writ Petition at all and was only intended to apply to decisions reached in proceedings under the Estate Duty Act ; "(2) The section would only apply if the Controller proceeds to reopen and re-determine a matter, which means that the matter has already, in accordance with the provisions of the Act, been closed. In the present case, the controller was pro ceeding in the ordinary course to determine the value of the property. (3) That there never was any decision by the High Court in either of the two Writ Petitions i.e. 39 of 1955, and 96 of 1956, and that so far as the second writ petition is concerned, the Government and the Controller were not parties to it and are not bound by the order passed. In the view that we take of the third contention raised on behalf of the Central Government and the Controller it will not be necessary to deal with the first two contentions in any detail. It appears to us to be an almost impossible contention that by the order passed in Writ Petition No. 39/55 there was any decision as regards the rights of parties by the High Court. The argument on behalf of the appellants is that as the Attorney‑General had made a statement accepting the stand taken up by the appellants and the Court had dismissed the application as infructuous in view of that statement, it should be regarded as a necessary implication of the order of the Court that it agreed with what was stated by the Attorney‑General, namely, that on the wording of section 57, as it stood at that time, no further duty could be realized. We are unable to agree that the dismissal of the petition as infructuous necessarily involves on the part of the High Court a decision in terms of the statement of the Attorney‑General What had happened was that the Attorney‑General expressed on behalf of the Controller the absence of any intention to proceed with the assessment or realization of duty, and as the petition has been filed to prevent the Controller from proceeding, the necessity for the petition disappeared and it was dismissed. Parties approach Courts to get relief either in respect of actual injuries to their rights or in respect of apprehended injuries. This was a case of apprehended injury. The apprehension disappeared on account of the statement of the Advocate‑General and the cause of action for the petition ceased to exist. There was no further need for the Court to apply its mind and determine the points in dispute. It is necessarily involved in the dismissal of a proceeding as infructuous that the decision of matters in dispute has become unnecessary. Had the Court been forced to give its own decision on the question of law involved it is difficult to say what conclusion of law it may have reached. It may have agreed with the Advocate‑General, it may have stopped short of what he was saying or it may have gone further. At the same time, it is necessary before we can say a matter has been decided that a finding may be recorded and there certainly was no such recording. Section 74‑A speaks of a decision determining rights and liabilities of parties. In order that rights and liabilities may be decided one of two things must happen. Either there should be an application by the Court of its mind to the questions of fact and law involved and a deter mination reached and recorded or there should be an operative order which necessarily involves the defining of rights and liabilities of parties. Neither of these two things happened in the present case. No. operative order was passed for the writ was refused, and no conclusions of law were in fact reached or recorded by the High Court. It is to be noted that out of the two Judges who passed that order, one has already in the High Court stated that no right and liability was determined and the same is the opinion of the other Judge who is a member of this Bench. Much stress was laid on the second order in Writ Petition No. 96/56 where S. A. Rahman, C. J., who was a member of the first Bench had made an observation to the effect that there was an intention of a complete discharge of the liability of the appellants by the grant of the certificate referred to in the statement of the Advocate‑General. We have to observe, in the first place, that even in this order S. A. Rahman, C. J., speaks of an `intention of grant of full discharge, but does not say that there was a deci sion by the Court. The learned Judge may be referring only to the intention of the parties. Secondly as now appears on an examination of the statement of the Advocate‑General, the conclu sion of S. A. Rahman, C. J., which was based, as the order shows, not on a recollection but on the record, was not warranted by the statement of the Advocate‑General. While the Advocate General had accepted that till amendment the proper duty which was due in accordance with the Estate Duty Act could not be realised, he had nowhere promised a complete discharge. His statement referred to section 58 instead of section

66. Section 58 relates to the payment of duty which has to be made upon the filing of an account and admittedly a certificate under the section is not intended to grant any full discharge which is granted only under section

66. It had been contended in Writ Petition No. 96/56 that the reference to section 58 in the statement of the Attorney General was mistaken and based on an assumption that it granted a complete certificate. There was no justification for this contention. But, in any case, so far as the second order is concerned the Central Government or Controller are not affected at all, because they were not parties to it. The Writ Petition had been dismissed in limine without notice to them. It was urged by Mr. Sleem, who appeared for the appellants in Appeal No. 10 of 1959, that the order in writ Petition No. 96/56 too was not a void order and was to be regarded as valid till it was set aside by the High Court on a proper application made to it. In support of this argument, learned counsel relied on a passage in Halsbury wherein it is stated that judgments for default of appear ance were not void and had to be set aside before they could be ignored. This passage is no authority for the case before us. We are not dealing with a judgment by default of appearance. A judgment of that kind is delivered where notice is issued to a party, but the party does not appear, and the judgment is deli vered ex parte. In such cases, if there was a defect in the service of notice, the ex parte judgment has to be set aside in continua tion of the same proceedings (unless it be a case of fraud when a separate suit will lie). But the case is entirely different where the Court refuses to issue notice to the opposite party. In such a case the opposite party, is, properly speaking, not a party to the proceedings at all and surely is not bound by anything decided therein. Learned Attorney‑General contended that the admission made by the Advocate‑General of Pakistan in Writ Petition No. 39/55 was mistaken and being an admission on a question of law should not bind the Government or the Controller. He referred in support of his argument to section 58‑B which empowers the Controller to serve on the accountable party a notice of demand of the duty that is found to be payable. While there is force in the contention (as will appear from a later portion of this judgment) that the statement was not based on a correct appre ciation of the legal position, the present discussion remains unaffected. If the Court had in fact decided Writ Petition 39/55 in accordance with the statement of Advocate‑General it would not have been of any consequence that the decision was based on a mistaken view of law. It would be a decision (other conditions of the section being satisfied) within the meaning of section 74‑A. The argument that the statement of the Advocate‑General was based on mistaken view is irrelevant for the purpose of the present discussion. We hold that there was no decision by the High Court in Writ Petition No. 39/55 and Writ Petition No. 96/56 within the meaning of section 74‑A. We would at the same time point out though it is not necessary to decide this matter finally, that the con tention that the section was intended to cover all decisions by the High Court, and not only a decision arrived at in proceedings under the Estate Duty Act is not quite easy to accept. If the intention of the legislature was to cover decisions in writ petitions too it is not understandable why a decision by the Supreme Court was not included, for the Supreme Court could as well have decided a matter in the exercise of its original writ jurisdiction. On the interpretation proposed by the appellants the Controller would be entitled to reopen a matter which had been finally decided by the Supreme Court though he would be debarred from proceeding in the face of a judgment by the High Court. But whatever otherwise the intention of section 74‑A one thing seems quite clear. It could never be the intention of this'd section that a decision of the High Court which simply recognises the fact that section 57 has on account of the draftsman's mistake has become unworkable without a formal amendment should be given permanent effect so as to prevent the realization of the duty which is payable under the Act. The legislature could never have intended to benefit a party just on account of a drafting error. On the argument presented by the appellants if all the persons from whom estate duty had not yet been realized when the amendment of 1953 was introduced had filed a writ petition after amendment then according to, the intention of the legislature all realization of the duty due from those persons should have been stopped. Nor can it be said that the decision of the Court in Writ Petition No. 39/55, even if we were to assume that the state of the Advocate‑General was incorporated in that decision, was a decision "finally determining rights of parties " What had the Advocate‑General admitted? He had admitted only this that for the realization of the duty that was in fact due section 57 did require a formal correction. He bad not accepted that the duty which the controller claimed was not due. He was only saying that a technical objection prevented the realization of such duty. According to the case of the appellants themselves he had threa tened, in Court that he was going to get an amendment made. To accept that a formal amendment is needed for realization of the true duty is not tantamount to an admission that no duty is due. If the Court then had passed an order in accordance with the statement of the Advocate‑General it would only be to the following effect : "Duty should not be realized till the clerical error which has crept into section 57 is rectified." The result would be that the moment the error is rectified the duty could be realized. The effect of section 74‑A can only be that the particular matter decided by the High Court cannot be reopened. Assuming that the High Court held section 57 to be unworkable the Con troller would be debarred only from reopening this particular question. He could not be allowed to hold that on the date on which the decision was given section 57 was workable. That is all. If he proceeds to determine value of the property he cannot be prevented, for the High Court has not determined such value. The, principle of res judicata is applicable to section 74‑A and the decision of the High Court would be binding only to the extent of the exact question decided. We now proceed to consider the appeal filed by the Govern ment and the Controller in respect of estate duty on agricultural land. The learned Attorney‑General contends: (1) that the Finance Act of 1956 was inter vires of the Central Legislature, and (2) that in any case even if that Act was ultra Tires and the position remained as it was under the Act of 1953 we can and we should modify the language of section 57 so that it enables a realization of proper duty and also apart from section 57 the duty could be realized in view of section 58‑D. In order to appreciate whether the Finance Act of 1956, was intra vires with respect to agricultural land, the history of the relevant legislation has to be referred to. In the Government of India Act, 1935, as originally enacted, there was no provision for legislation with respect to estate duty at all. In 1945 the Parliament amended that Act by means of Acts 8 and 9 Geo. 6 ch.

7. By this amendment Entry 56‑A was inserted in the Federal List enabling the Federal Legislature to make laws for imposition of estate duty on property other than agricultural land and Item 43‑A was inserted in the Provincial List empowering the Provincial Legislature to make laws relating to estate duty on agricultural land. In section 311 (2) of the Government of India Act, 1935, the definition of an "estate duty" was provided for. It reads thus ; 'estate duty' means a duty to be assessed on or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under the Federal or Provincial Laws relating to the duty, of all property passing upon death or deemed, under the provisions of the said laws, so to pass." In 1948 the Government of India Act was again amended in this respect by the Constituent Assembly of Pakistan. Item No. 43‑A was deleted from the Provincial List and Item No. 56‑A in the Federal List was amended, so as to omit the exception relating to agricultural land. The definition of estate duty was also amended so as to omit the reference to rules framed by the Pro vincial Government and henceforth it read thus: 'estate duty' means a duty to be assessed on or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under the Federal law relating to the duty, of all property passing upon death or deemed, under the provisions of the said law so to pass." In 1950 when the Estate duty Act was enacted the power to impose duty in respect of all property vested in the Central Legisla ture. It is conceded that the Act of 1950 and the amendments of 1953 are intra vires. The Finance Act of 1956 was passed after the Constitution of Pakistan came into force which happened on the 23rd March 1956. Item No. 74 of the Provincial List which is in the Fifth Schedule of the Constitution relates to "Estate Duty in respect of agricultural land", while Item No. 26 of the Federal List refers to "Estate and Succession duties in respect of M property other than agricultural land." This would show that by the Constitution estate duty in respect of agricultural land was within the exclusive jurisdiction of the Provincial legislature, while estate duty on property other than agricultural land was in the exclusive jurisdiction of the Federal Legislature. The defini tion, however, of estate duty in Article 218 of the Constitution remained the same as it was after the 1948 amended in which there was no reference to the Provincial Legislature, except that for the words "Federal Law" the words "any Act of Parliament" were substituted. The contention of the learned Attorney‑General is that although. estate duty on agricultural land was made a Provincial subject, the determination of principal value was only to be in accordance with law framed by the Parliament. The result according to him is that the Provincial Legislature will only determine the rate of the duty and the whole of the procedure for assessment and realization will be provided by the Parliament. Such a provision he says had been deemed necessary because a great deal of inconvenience would be caused if estate duty on agricultural land was to be determined by one authority and estate duty on other property was to be determined by another authority. The argument of the learned Attorney‑General is wholly unacceptable to us. It would be a most unusual provision that whereas one of the two Legislatures should have exclusive jurisdic tion to impose duty the other should have exclusive jurisdiction to regulate the procedure in respect to it. If really such an extraordinary result was intended there should have been clear words to that effect. The circumstances are more consonant with there having been an omission in the definition by an oversight of words relating to the determination of the principal value in accord ance with rules framed by the Provincial Government. We would not be prepared to agree that the respective fields of legislation of the Provincial and Federal Legislatures were being indicated by means of a definition. The proper places for defining the respective powers of the two Legislatures are the Lists in the Fifth Schedule. If the intention was that the Provincial Legislature should not legislate with respect to estate duty on agricultural land apart from the determination of its rate, entry No. 74 in the Provincial List would have been differently worded, and Entry No. 26 in the Federal List would have stated that the Federal Legislature pos sessed the power not only of imposing estate duty on property other than agricultural land, but of making all provisions with respect to estate duty on agricultural land apart from determination of rate. The contention of the learned Attorney‑General is incon sistent with the Entries in the List to which alone we would turn for the purpose of determining the fields of legislation. The definition if it were repugnant to the List cannot be given effect to. The technical difficulty which arises on account of the incon sistency between the definition and the Lists can be avoided by a reliance on the opening words of Article 218 wherein it is stated that the definitions apply unless the text otherwise requires. We find force in the argument of Mr. Sleem that if we interpret the definition and the Lists as suggested by the Attorney‑General then if the Provincial Legislature itself wanted to impose any duty it would be unable to do so unless the Central Legislature agreed and this is inconsistent with the existence of an Entry in the Schedule. If according to the Provincial List the Provincial Legislature has the power to frame laws with respect to a particular matter that means that it can do so without the collaboration of the Central Legislature. At the same time, even if we were to agree that the definition of estate duty in Article 218 is to be accepted even with respect to agricultural land, that portion of the Finance Act of 1956 by which section 57 was amended will not be validated. The defini tion only speaks of the determination of value according to rules framed by the Parliament. At the most the power which is granted to the Parliament would be to frame rules for determining value. But the amendment of section 57 by the Act of 1956 is not with respect to the determination of value. Accepting there fore without conceding, that the definition is applicable to the present case the learned Attorney‑General can seek no assistance from it because section 57 would still remain in 1956 as it was after the amendment of 1953. But while we reject this contention of the Attorney‑General we find force in the other two contentions. We are satisfied that this is a case where the Court can modify the Language of an enactment. It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature. In fact, it is admitted on behalf of the appellants that the failure to make a consequential amendment in section 57 could only be due to a slip. After providing the Controller could determine value subject to an appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has happened is that the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the legislature is a proposition which is well supported by authority and well justified in reason. As stated in Crawford on Statutory Construc tion (section 201 p. 348): "If the true meaning of the legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that the legislative will may not be defeated. As a result, spelling, grammar, numbers and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to be obvious intent of the Legislators. But it must clearly, or at least with reason able certainty, appear that the error is in fact one before the Court will be justified in making the proper correction or amendment or the Court will invade the province of the legisla ture and exercise legislative power. But when satisfied of the error, the Court may make the necessary correction. In accord with this principle, an erroneous description may be made to describe the thing actually intended or a misnomer made to name the thing really meant." In Maxwell's Interpretation of Statutes the rule is thus stated on p. 229, 1953 Edition: "Where the language of the statute in its meaning and grammatical constructions, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence." In Salmon v. Duncombe and others (11 A C 634), their Lordships of the Privy Council said "It is however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. And they have set themselves to consider, first, whether any substantial doubt can be suggested as to the main object of the legislature, and, secondly, whether the last nine words of section 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular." There being no doubt in the present case that the duty which the legislature intended to be realized was that which was to be determined in accordance with the provisions of the Act. We find we have jurisdiction to modify section 57 so as to rectify the draftsman's mistake and to read in it references to the Con troller and the Appellate Tribunal, etc., and we would hold that the proper duty could be realized in spite of the defective wording of section

57. Stress was laid during argument on the rule that statutes imposing taxes should be strictly construed. Any effort to invoke the aid of this rule in the present case is misconceived, There is a distinction between provisions which impose taxes and those which provide for the machinery by which tax is assessed and realized. The provisions relating to imposition of tax are to be strictly construed in favour of the subject so that if there be any substan tial doubt it has to be resolved in his favour. But the machinery sections are to be liberally construed. If the incidence of tax be clear the machinery sections should be so construed as to make the realization of the proper tax possible. They should not be so construed as to defeat the intention of the legislature and to prevent the realization of the tax that is in fact due. The distinc tion stated above was recognised by the Federal Court of Pakistan in Khan Bahadur Amiruddin and others v. West Punjab Province (P L D1956 F C 120.), where the learned Judges while dealing with a case under the Punjab Immovable Property Tax Act said: "The Act in question is no doubt a Taxing Act and unless the liability to be taxed is clear the interpretation should be in favour of the subject. But no question of interpretation arises regarding section 3, which, in unambiguous terms, determines the liability of the lands to be taxed. The provisions that have to be interpreted are those relating to the machinery of the assessment and in respect of such provisions of a taxing Act the Privy Council in Income‑tax Commissioner v. Mahabi Ramjidas A I R 1940 P C 124, observed that that construction should be preferred which makes the machinery workable." We also agree with the contention of the learned Attorney -General that in spite of the defective wording of section 57 duty could be realized on account of section 58‑D. This section empowers the Controller to issue a notice of demand when duty has been determined in consequence or in pursuance of an order passed under the Act. In accordance with this section therefore once the Controller determines the value of the property and the t duty that is due, he would have authority to issue a notice of demand. It has been urged on behalf of the appellants that this empowers only the issue of notice and does not contain any specific provision as to the realization of the duty. It appears to us to be involved in the authority to issue notice that the amount mentioned in the notice can be realized. We may mention before concluding the contention pressed before us by Mr. Suhrawardy that the Controller and the Govern ment were only taking advantage of a technicality inasmuch as the High Court may very well have allowed Writ Petition No. 39/55 and may have granted a writ forbidding the Controller from taking further steps. We may point out that it is only the appellants who have been trying to take advantage of a technicality and they have failed. The liability of payment of estate duty arose in the year 1952 when Sir Muhammad Akbar Khan died and in accord ance with the Estate Duty Act the value of the estate of Sir Muhammad Akbar Khan was to be assessed by the Controller. The amendment of 1953 had come into force before the year allowed to the Central Board of Revenue for reference to the High Court expired. The Controller admittedly had on account of the amend ment the power to determine value. The appellants had objected to the exercise of jurisdiction on the ground of a drafting error. This objection though conceded in a limited form by the Advocate‑General of Pakistan in 1955 had no force and is now being over ruled. The effect of the judgment is that proceedings before the Controller shall have their ordinary and natural course. As a result Appeals Nos. 8, 9 and 10 of 1959 fail and are dismissed. Appeals Nos. 11 and 12 of 1959 are accepted and the order of the High Court forbidding the realization of the estate duty in respect of agricultural land is set aside. Parties shall bear their own costs. A. H. Order accordingly.